Role of informants detailed in Whitmer kidnap case

Sep. 1—TRAVERSE CITY — A defense attorney, representing one of five men facing state charges in the accused plot to kidnap Gov. Gretchen Whitmer, continued a line of questioning Wednesday regarding whether the government was behind the founding of a Wisconsin militia movement.

Attorney Thomas D. Siver, who represents Michael Null, asked the state's star — and so far only — witness, FBI Agent Henrik Impola, whether the government, or someone working on behalf of the government, started the Wisconsin Three Percenters.

"The Three Percent Wisconsin Patriots, that's a Facebook page, that was created by Steve Robeson," Impola said. "And I asked him during an interrogation if he was tasked with that, and he said that he was not tasked with that, that he created it on his own, it wasn't part of what he did for the government."

"Steve Robeson, acting as an informant, or a confidential — what do you call it — source? During his time as a confidential human source created this?" Siver asked.

"That's my understanding," Impola said.

Attorney Damian Nunzio, who represents Michael Null's twin brother, William Null, had asked Agent Impola a similar question on Tuesday. That provoked a meeting in the judge's chambers between attorneys and 86th District Court Judge Michael Stepka, with no further clarification offered in court.

Two national nonprofit organizations, the Anti-Defamation League and the Southern Poverty Law Center, have previously labeled the Three Percenters, also known as III%ers, as part of a broader anti-government militia movement and an extremist group, respectively.

The issue could be relevant to the defense because the FBI, in its investigation, used confidential human sources to gain the men's trust and gather information about the men's activities prior to what repeatedly has been referred to in court as "the takedown," when more than a dozen men were taken into custody Oct. 7, 2020, and charged in state and federal court in relation to the plot.

Robeson and another confidential human source, referred to in court as "CHS Dan," provided federal officers with voluminous phone and in-person recordings which the state detailed in court proceedings and says includes evidence of the crimes charged.

For example, the state says on two occasions, once on Aug. 29 and again on Sept. 12, various combinations of the men traveled to Antrim County while some of the men were armed, surveilled the governor's vacation home and discussed details of the plot on audio and video recordings.

The Null brothers, Shawn Fix and Eric Molitor, all of Michigan, are charged with one count each of providing material support or resources for an act of terrorism and one count each of possession of a firearm during the commission of a felony.

Brian Higgins, a resident of Wisconsin, is charged with one count of providing material support or resources for an act of terrorism.

A federal jury last week in Grand Rapids found two other men, Adam Fox and Barry Croft Jr., guilty of conspiring to kidnap the governor and conspiracy to possess weapons of mass destruction. Croft was convicted on an additional weapons charge and the two men face sentences of up to life in prison. They are expected to be sentenced in December.

Testimony during the federal trial showed the men were angry about state and federal government pandemic restrictions and possible vaccine mandates.

A previous jury could not reach a unanimous decision on Fox or Croft Jr. and, in April, acquitted Daniel Harris and Brandon Caserta, two other men charged in the case.

Two other Michigan residents, Ty Garbin and Kaleb Franks, previously pleaded guilty and testified in the federal case that they agreed to kidnap Whitmer from her lakeside home.

Impalo said Wednesday he gives rules, or what he called "admonishments," to the confidential human sources he works with, which include not committing crimes, not presenting themselves as federal agents and not talking about their work, for their own safety.

Those working on behalf of the government also cannot trick someone into committing a crime simply for the purpose of prosecuting them for it — an action known as "entrapment."

Some of the federal defendants used an entrapment defense in previous trials, record show. However, the law also states if someone already intends to commit a crime and an undercover agent or CHS helps to make that crime happen, it is not considered entrapment.

Impola said on the stand he was not Robeson's "handler," meaning he was not the agent Robeson reported to, and did not know what admonishments Robeson had been given.

Robeson, who is not scheduled to testify in 86th District Court, became a controversial figure after the FBI acknowledged in court filings that it terminated his CHS status shortly after the "takedown" and Robeson was charged with a crime.

"Because CHS Steve's actions were so far outside the bounds of the cooperation agreement, it was terminated and he was charged with, and convicted of, being a felon in possession of a firearm in the Western District of Wisconsin," government attorneys said in a Jan. 6 court filing. "In summary, CHS Steve was a double agent, often working against the interests of the government."

Also on Wednesday, at least one attorney, William Barnett, who represents Eric Molitor, publicly referenced a settlement agreement with state prosecutors, reportedly regarding a decision not to have one of the FBI's confidential human sources, "Dan," testify in person.

On Aug. 15, Sunita Doddamani, who is leading the prosecution of the five men charged in 86th District Court, filed a memorandum with the court explaining points of law regarding the use of co-conspirator statements by 31 people, including Stephen Robeson.

This so-called settlement agreement was not publicly provided at press time.

This preliminary hearing, which is designed to provide the facts of the case for the judge to decide whether there is enough evidence to bind the case over for trial in 13th Circuit Court, is scheduled to resume at 9 a.m. Thursday.